BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017099 BOARD VOTE: ___x______ _x______ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017099 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing she elected not to participate in the Survivor Benefit Plan prior to retirement, in a timely manner * reimbursing her all premiums paid as a result of this correction __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017099 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of her records to show she elected not to participate in the Survivor Benefit Plan (SBP). 2. The applicant states, in effect, she submitted a DD Form 2656 (Data for Payment of Retired Personnel) electing not to participate, yet she continues to receive an SBP/Reserve Component SBP (RCSBP) premium bill. The Defense Finance and Accounting Service (DFAS) informed her they did not have her election indicating that she did not want to participate in SBP. She knows this is an error because she is not married. Her DD Form 2656 was filled out to indicate that she did not want SBP. 3. The applicant provides a post-retirement DD Form 2656. 4. She also provides the following documents by a separate fax: * Divorce Decree, dated 17 March 1995 * Certificate of Marriage, dated 7 June 1997 * Divorce Decree, dated 22 March 2005 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 29 March 1993. She held military occupational specialty 92G (Food Service Specialist). At the time of her enlistment, she had been married to Robert as of 4 March 1989. 2. On 27 March 1995, the applicant and Robert were divorced. 3. She entered active duty in support of Operation Joint Endeavor on 8 June 1996 and served in Germany/Hungary from 25 June 1996 to 31 January 1997. She was assigned to the 811th Ordnance Company. 4. She was honorably released from active duty on 27 February 1997 and was transferred to a troop program unit. She was later assigned to the 450th Ordnance Company, Aiken, SC. 5. She married her spouse, Kenneth, on 7 June 1997. 6. On 18 December 1999, the U.S. Army Physical Disability Agency published Orders D254-4 releasing the applicant from active duty on 29 September 1999 and placing her on the Temporary Disability Retired List (TDRL) effective 30 December 1999 in her retired pay grade of E-3. 7. The available evidence does not show that she elected to participate in the SBP at the time of placement on the TDRL. Her DFAS pay records do not reflect participation or a declination of participation. 8. On 10 January 2005, the U.S. Army Physical Disability Agency published Orders D10-22 removing her from the TDRL and discharging her from the U.S. Army Reserve, effective 29 October 2004 with entitlement to severance pay. 9. On 22 March 2005, the applicant and Kenneth were divorced. Their divorce decree does not address SBP. 10. In September 2013, she petitioned the Department of Defense (DOD) Physical Disability Board of Review (PDBR) for a review of her PTSD rating. The PDBR boarded her case on 16 July 2014 and recommended discharge with severance pay be re-characterized to reflect permanent disability retirement at 30 percent effective the date of separation. 11. On 8 January 2015, the Deputy Assistant Secretary of the Army (Review Boards) accepted the recommendation of the DOD PDBR to re-characterize the applicant's separation as a medical retirement with a 30 percent disability rating. 12. On 21 January 2015, the U.S. Army Physical Disability Agency revoked the applicant's 2005 severance pay discharge orders and issued new orders placing the applicant on the permanent retired list in the retired pay grade of E-3, effective 29 December 2004. 13. On 3 March 2015, the applicant completed a DD Form 2656. She indicated she was single and designated her son as the beneficiary of her arrears of pay. She also indicated she had a daughter (born in May 1991). She elected not to participate in the SBP and indicated she had no eligible dependents under the plan. She and the Retirement Services Officer signed this form. 14. According to an email, dated 23 August 2016, DFAS indicated the applicant currently has "automatic coverage" for spouse effective 30 December 1999. DFAS has not received a DD Form 2656 from the retiree. She is in full VA (Department of Veterans Affairs) waiver which means she has an SBP direct remittance balance ($1,803.35 with the last payment received on 29 September 2015). REFERENCES: 1. Public Law 92-425 enacted 21 September 1972 established the SBP. The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances. Since its creation, it has been subjected to a number of substantial legislative changes. 2. Title 10, United States Code, section 1448 states the program established by this subchapter shall be known as the SBP. Members eligible to participate in the plan are persons entitled to retired pay and persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age. a. Section 1448, sub-paragraph (a)(3)(A), Spousal consent for certain elections respecting standard annuity. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan; to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse. b. Section 1448, sub-paragraph (a)(3)(C), Exception when spouse unavailable. A person may make an election described in subparagraph (A) or (B) without the concurrence of the person’s spouse if the person establishes to the satisfaction of the Secretary concerned that the spouse’s whereabouts cannot be determined; or that, due to exceptional circumstances, requiring the person to seek the spouse’s consent would otherwise be inappropriate. c. Section 1448, sub-paragraph (a)(4)(A), Irrevocability of elections, standard annuity. An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. d. Section 1448a, Authority. A participant in the plan may be subject to the provisions of this section, elect to discontinue participation in the plan at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences. e. Section 1448a(b) Concurrence of Spouse. (1) A married participant may not (except as provided in paragraph (2)) make an election under subsection (a) without the concurrence of the participant’s spouse; (2) Exceptions, a participant may make such an election without the concurrence of the participant’s spouse by establishing to the satisfaction of the Secretary concerned that one of the conditions specified in section 1448(a)(3)(C) of this title exists; and (3) The concurrence of a spouse under paragraph (1) shall be made in such written form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense. DISCUSSION: 1. The applicant was married to Robert on 4 March 1989. She and Robert were divorced on 27 March 1995. She married Kenneth on 7 June 1997. She was married when she was placed on the TDRL on 30 December 1999. DFAS records do not contain evidence of an SBP election. Her records do not contain an SBP election to participate or decline participation. 2. She was removed from the TDRL and discharged with severance pay on 29 December 2004. As she was no longer retired, any SBP coverage or premium payments would have stopped on that date. In any case, she and Kenneth were divorced on 28 April 2005 and their divorce decree is silent with respect to the SBP. 3. Years later, in 2015, the PDBR considered her case and changed the December 2004 decision to discharge her with severance pay. The PDBR directed and this Board adopted the decision to retire her instead, with a 30 percent disability rating, back dated to her discharge date on 29 December 2004. 4. Her records continue to show that she is married and since she did not decline the SBP before her retirement date, her coverage defaulted to "spouse and children" SBP coverage. Additionally, it appears that she has elected to receive her VA service-connected disability in favor of her Army retired pay. As a result, DFAS bills her SBP premiums separately. That is why she has a direct remittance balance. 5. Given the circumstances in her case, there does not appear to be a Government error. However, it is clear she did not understand the SBP program. She provides a DD Form 2656 indicating she elected not to participate in the SBP, although it was signed after her retirement date. 6. Although she did not keep her records diligently updated, it appears her intent was not to participate in the SBP. Had she fully understood this program, it is more than likely she would have submitted the necessary election on time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017099 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2